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Volume 8 - Opinions of Counsel SBEA No. 10

Opinions of Counsel index

Taxes (apportionment) (special assessing units - change in class designation - Real Property Tax Law, §§ 932, 1803; Nassau Co. Administrative Code § 6-23.0:

In a special assessing unit, if a class four parcel is divided into two parts after the completion of the final assessment roll and one of the parts is combined with a class one parcel, the assessment may be apportioned between the two parts, but both parts remain subject to the class four tax rate until the preparation of the next assessment roll.

We have received an inquiry concerning the apportionment of an assessment of real property located in Nassau County, one of the two “special assessing units” in the State of New York. These two assessing units share the distinction of having a four-class real property tax share system, established by Article 18 of the Real Property Tax Law (RPTL). As a result of this system, separate tax rates are established annually for each of the four classes of real property.

A question has now arisen because a part of a parcel, which was designated class 4 on the final assessment roll, has been sold to an adjoining owner whose property is designated class 1. The question is whether there should be an apportionment of assessed value with accompanying change of class designation and class tax rate for tax levy purposes prior to the preparation of the next year’s assessment roll.

Section 6-23.0 of the Nassau County Administrative Code authorizes certain persons to petition the chairman of the board of assessors to make an apportionment of “. . . real property and the assessment thereof on the county and school district assessment roll, and the apportionment of taxes and assessments for benefit on such real property and the arrears thereof . . .”. If the petition is approved, the chairman must prepare a memorandum of apportionment setting forth the apportionment of taxes and benefit assessments on such real property and the arrears. Such a memorandum “may provide for apportioning only such real property and the assessment thereof, without apportioning the taxes and assessments for benefit and arrears thereof.”

Section 6-23.0 is similar to section 932 of the RPTL, which authorizes an apportionment to be made where the parcel is capable of being apportioned and a sufficient description is furnished to the assessor. Once an apportionment has been made, both sections require the receiver of taxes or county treasurer to accept payments of taxes in accordance with the apportionment.

Although section 932 provides for an apportionment of the assessment, it does not authorize a change in the total assessed valuation of the parcel which is to be apportioned. Since the previously quoted language of section 6-23.0 parallels section 932, we believe the same conclusion follows (i.e., the sum of the assessed values of the parts must equal the assessed value prior to the apportionment).

There is no suggestion in this case that the assessor would change the total assessed value through apportionment. However, if the class designation were changed, a different tax rate would be applied to the assessed value of the portion sold and a different tax liability would result.

Subdivision (2)(a) of RPTL, section 1803 mandates that the legislative body of a special assessing unit annually adjust base proportions to reflect “any change in the class designation of any parcel.” This provision seems to contemplate a once a year adjustment in both class designation and base proportion. Presumably, the Legislature intended that any such adjustment in the class designation of a parcel would be shown on the assessment roll based upon the facts as of taxable status date (which is May 1 in Nassau County), and would continue in effect until the next succeeding taxable status date. Otherwise, changes in class designations after the tax roll has been prepared and after tax rates for the various classes have been established, might result in a shortfall or a cash windfall to taxing jurisdictions.

The purpose of the provisions of section 932 of the RPTL and section 6-23.0 of the Nassau County Administrative Code is to afford persons with separable interests in real property, which had been assessed as one parcel, an opportunity to satisfy existing tax liabilities on their separable interests. However, it is our opinion that the Legislature did not intend that such apportionments would affect current municipal tax levies, which might occur in special assessing units if class designations were changed after the respective class tax shares and tax rates are determined.

Thus, it is our opinion that for tax levy purposes the class designation of the part of the class 4 parcel, which has been merged with a class 1 parcel, should not be changed until the preparation of the next year’s assessment roll.

April 26, 1983